State v. McGeeState v. McGee
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Dennis Day Lager 1025 Chapel Ridge Street, N.E. Canton, Ohio 44714
JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Joseph J. Vukovich
WAITE, J.
{¶1} Appellant, Gregory McGee, appeals his jury convictions on one count of murder, in violation of
{¶2} Appellant contends that he was denied effective assistance of counsel and that the trial court committed reversible error based on its jury instructions regarding self-defense. Appellant cannot demonstrate that he would have been acquitted but for his counsel‘s conduct at trial. He also cannot show that the trial court‘s jury charge on self-defense was erroneous. Therefore, Appellant‘s assignments of error are overruled and his conviction is affirmed.
{¶3} The following facts are taken from Appellant‘s testimony at trial. On August 25, 2006, Damian Hill drove Appellant to a two-story duplex at 30 Saranac Avenue in Youngstown, Ohio to рurchase crack cocaine from his drug supplier of approximately two months, Reesie Phillips. (Tr., pp. 877-878.) Appellant acknowledged at trial that he both used and sold crack cocaine. (Tr., p. 904.) As he was approaching the house, he was met by the decedent, Charles Bush, who was leaving the porch of Phillips’ neighbor, Martina Moore. (Tr., p. 881.)
{¶4} Appellant testified that Bush was Phillips’ “doorman.” (Tr., p. 888.) According to Appellant, Phillips had a prosthetic leg, and he relied upon Bush for security. Appellant and Bush entered the second story apartment at 30 Saranac Avenue, and walked through the living room into the dining room. (Tr., p. 882.)
{¶6} Appellant was able to disarm Bush during the scuffle, but Bush continued to threaten to kill him. (Tr., p. 886.) With the gun in his hand, Appellant turned to flee the residence, but remembered he had seen another gun on the dining room table when he arrived. (Tr., p. 886.) Furthermore, he was not сertain that Bush did not have another gun on his person. (Tr., p. 914.) Appellant, who was facing the door, heard Bush say, “I‘m about to kill you, bitch,” so he “swung the gun behind [him] while [he was] still running and let off shots trying to make for the door.” (Tr., p. 886.) Appellant fired seven shots, but claimed that he was not aware that any actually hit Bush. He got into Hill‘s car and eventually threw the gun out of the car window. (Tr., p. 889.)
{¶7} When police were dispatched to 30 Saranac Avenue, Bush identified “Greg McGee” as the man who shot him. According to Bush‘s mother, he was carrying $1,800.00 that day that was not recovered at the crime scene. (Tr., p. 414.)
{¶9} Appellant was arrested but denied that he was at the scene of the crime or that he had ever exchanged words with Bush. (Tr., p. 933.) After he was aware of Bush‘s accusation, Appellant wrote to the trial judge asking for a bail reduction. In the letter dated October 7, 2006, he again denied committing the crime, and suggested instead that it was another “Greg McGee.” (Tr., pp. 896-897, 936.)
{¶10} When Appellant was asked why he never told the police or the prosecutor‘s office that he was acting in self-defense, he responded that he was scared and did not think that anyone would believe him. (Tr., pp. 893-894, 899.) Appellant‘s trial counsel was his third attorney of reсord, and was retained shortly before trial. Appellant indicated that he had difficulty working with his first two attorneys, and that he was confident that his first two attorneys would not have believed his story. (Tr., p. 899.)
FIRST ASSIGNMENT OF ERROR
{¶11} “DEFENDANT-APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY ARTICLE I, § 10 OF THE CONSTITUTION OF THE STATE OF OHIO AND BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES BY REASON OF COUNSEL‘S CUMULATIVE FAILURES TO ADVOCATE DEFENDANT-APPELLANT‘S CAUSE AND TO BRING TO BEAR SUCH SKILL AND
{¶12} We review a claim of ineffective assistance of counsel under the two-part test articulated in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Under Strickland, a reviewing court will not deem counsel‘s performance ineffective unless a defendant can show his lawyer‘s performance fell below an objective standard of reasonable representation and that prejudice arose from the lawyer‘s deficient performance. State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph one of syllabus.
{¶13} To show prejudice, a defendant must prove that, but for his lawyer‘s errors, a reasonable probability exists that the result of the proceedings would have been different. Id. at paragraph two of syllabus. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland at 694. Prejudice may not be assumed, it must be affirmatively shown. See State v. Reine, 4th Dist. No. 06CA3102, 2007-Ohio-7221, at ¶41.
{¶14} When considering an ineffective assistance of counsel claim, the reviewing court should not consider what, in hindsight, may have been a more appropriate course of defense. See State v. Phillips (1995), 74 Ohio St.3d 72, 85, 656 N.E.2d 643 (a reviewing court must assess the reasonableness of the defense counsel‘s decisions at the time they are made). Rather, the reviewing court “must be highly deferential.” Strickland, 466 U.S. at 689.
Ineffective Claim No. 1
{¶16} “Defense counsel failed to file appropriate pre-trial motions to suppress in-court identification of Defendant-Appellant as the perpetrator of the shooting based upon an impermissibly suggestive photo array line-up provided to identification witnesses prior to trial.”
{¶17} Trial counsel‘s failure to file a motion to suppress does not necessarily constitute ineffective assistance of counsel. State v. Madrigal (2000), 87 Ohio St.3d 378, 389, 721 N.E.2d 52. However, the failure tо file a motion to suppress may constitute ineffective assistance of counsel when the record demonstrates that the motion would have been granted. State v. Barnett, 7th Dist. No. 06-JE-23, 2008-Ohio-1546, ¶31.
{¶18} Convictions based on eyewitness identifications at trial following pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive so as to give rise to a very substantial likelihood of irreparable misidentification. State v. Perryman (1976), 49 Ohio St.2d
{¶19} However, even if the procedure was unnecessarily suggestive, the identification need not be suppressed if it is reliable under the totality of the circumstances. State v. Waddy (1992), 63 Ohio St.3d 424, 438, citing Neil v. Biggers (1972), 409 U.S. 188, 199. Factors determining the degree of reliability include:
{¶20} “[T]he opportunity of the witness to view the criminal at the time of the сrime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Id. at 199-200.
{¶21} After providing videotaped witness statements to the police a few days after the murder, Deborah and William Tondo, a married couple who lived next door to the house where the crime was committed, identified Appellant through a photo array as the man who shot Bush. While no two persons in the array were dressed in similar colors or in any similar fashion, Appellant was the only individual in the photo array wearing a red shirt. When asked to identify the perpetrator from the same photo array at trial, Mr. Tondo responded that Appellant was in the “corner picture” stating “[h]e‘s got on a red shirt * * * Now that‘s what he had on the day he shot him too, the red shirt.” (Tr., p. 576.)
{¶22} Appellant argues, “[n]oticeable about William Tondo‘s response is that it was inappropriate to the question, namely, that it goes to the identity of [Appellant] and not to a description of the exhibit, and that it demonstrates Tondo‘s fixation on
{¶23} First, there is no evidence on the record that the police were aware that Appellant wаs wearing a red shirt when he committed the crime. The record reveals that the Tondos were interviewed by the police a few days after the murder and were given the photo array after they completed their statements. The fact that Appellant might be wearing the same red shirt appears to be a coincidence, rather than a ploy by the police to make Appellant‘s photo stand out among the other photos.
{¶24} Second, even if the red shirt was impermissibly suggestive, the Tondos’ testimony at trial demonstrated that they had ample opportunity to view and identify Appellant as the man who shot Bush. According to Mr. Tondo‘s testimony, he was sitting on his porch when he saw a сar pull up and park across the street. (Tr., p. 565.) Initially, he did not pay attention to the man who exited the passenger side of the car, because there was a lot of traffic, that is, people in and out of their cars, on Saranac Avenue. (Tr., pp. 566, 580.) However, he did notice the driver of the car, because he believed that the driver was trying to hide his identity by remaining in the shadows of the car. (Tr., p. 567.) Mr. Tondo first took notice of Appellant when he and Bush held a conversation on the sidewalk leading to the porch at 30 Saranac Avenue. (Tr., p. 582.)
{¶25} According to Mr. Tondo, Appellant and Bush went into the dwelling at 30 Saranac and shortly thereafter he heard four gunshots. (Tr., pp. 584-586.) Then, Appellant, slouched over and holding a gun at his waist, ran out of the building. (Tr.,
{¶26} Mrs. Tondo testified that she and her husband were sitting on the front porch when Appellant exited a car parked across the street. (Tr., p. 463.) She testified that she glanced at him long enough to be able to identify him. (Tr., p. 464.) She testified that she heard gunshots and then she saw Appellant “[m]oving quickly” toward the car. (Tr., pp. 467-468.) According to Mrs. Tondo, there was nothing obstructing her view of Appellant when he was walking into and out of the house at 30 Saranac Avenue. (Tr., pp. 468-469.)
{¶27} Therefore, the Tondos had ample opportunity to view Appellant both prior to and after the crime. No due process violation occurred because the Tondos’ identification of Appellant did not stem from the photo array, but, instead, from their observations at the time of the crime. State v. Davis (1996), 76 Ohio St.3d 107, 666 N.E.2d 1099.
{¶28} Thus, Appellant cannot demonstrate that a motion to suppress the Tondos’ testimony would have had a reasonable probability of success. His first ineffective assistance of counsel claim is overruled. As his second and third claims both involve the admission of statements made by Bush prior to his death, we will address them together.
Ineffective Claim No. 2
{¶29} “Defense counsel failed to properly prepare for a motion in limine hearing to supprеss evidence styled as a ‘dying declaration’ of decedent, Charles
Ineffective Claim No. 3
{¶30} “Defense counsel failed to renew his objection at trial as to the admission of Charles Bush‘s statements as a dying declaration, all for the purpose of preserving for appeal the trial court‘s ruling on the motion in limine, thereby waiving appellate review on that issue.”
{¶31}
{¶32} We summarized the law on the “dying declaration” exception to hearsay in State v. Ross, 7th Dist. Nos. 96 C.A. 247, 96 C.A. 251 as follows:
{¶33} “In order for statements of a deceased to be admissible as dying declarations, ‘[i]t is essential * * * that it should be made to appear to the court, by preliminary evidence, not only that they were made in articulo mortis [at the point of death], but also made under a sense of impending death, which excluded from the mind of the dying person all hope or expectation of recovery.’ * * * Robbins v. State (1857), 8 Ohio St. 131. The state of mind of the declarant at the time of his declarations is decisive. State v. Woods (1972), 47 Ohio App.2d 144, 147, 352 N.E.2d 598. ‘Despair of recоvery may * * * be gathered from the circumstances if the
{¶34} At a motions hearing on May 3, 2007, the trial court received the testimony of Detective Douglas Bobovnyik for the purpose of ruling on Appellant‘s motion in limine to exclude Bush‘s alleged “dying declaration.” According to his testimony, he responded to a call on the police radio involving a shooting at 30 Saranac on August 25, 2006. (Hrg. Tr., p. 5.) When he arrived, he was informed by a small group of people standing in front of the duplex that the victim was inside the house. (Hrg. Tr., p. 6.) He found Bush lying on his back in the living room. He was the first officer on the scene.
{¶35} According to Bobovnyik, there was one woman and two or three men in the room with Bush, including Mr. Tondo. (Hrg. Tr., p. 7.) Bush appeared to be shot in the chest just below the armpit on his left side. (Hrg. Tr., p. 10.) There was no bleeding outside of his body, but he was struggling to breathe. Based upon the location of the bullet wound, Bobovnyik believed that Bush was going to die. (Hrg. Tr., p. 11.)
{¶36} Bobovnyik testified that he told Bush that he was shot in the side and “[t]hat‘s real serious.” (Hrg. Tr., p. 11.) He told Bush that he may not recover from his wounds, and Bush acknowledged that he was hurt “real bad” and that he might die. (Hrg. Tr., p. 11.) Bush identified “Greg McGee” as the man who shot him. (Hrg. Tr., p. 11.)
{¶38} While it is true that the videotaped statements are not a part of the record on appeal, Appellant‘s assertion that neither Tondo nor Moore heard Bush acknowledge his dire medical condition was confirmed by their testimony at trial. Moore testified that Bobovnyik told Bush that, “it doesn‘t look good and he may not make it,” but that Bush did not respond to Bobovnyik‘s statements. (Tr., pp. 617, 622.) Tondo testified that Bobovnyik‘s conversation with Bush consisted of little more than the acknowledgement that “Greg McGee” was the man who shot him. (Tr., p. 573.)
{¶40} The excited utterance exception allows testimony on, “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”
{¶41} Appellant contends that, even if Bush‘s statement is admissible as an excited utterance, he was prejudiced by the characterization of the statement by the state at trial as a “dying declaration.” The jurors were not instructed as to the meaning of the term of art, “dying declaration,” and, as a consequence, the term had no legal significance to the jurors. This record reflects that the characterization of Bush‘s statement at trial had no outcome-determinative effect. Accordingly, his second and third ineffective assistance of counsel claims are overruled.
{¶42} “Defense counsel failed to advocate on behalf of Defendant-Appellant by failing and refusing to motion the court for severance of the Weapons Under Disability charge from the charge of Murder with a Firearm Specification, thereby allowing the State to place Defendant-Appellant‘s character in issue during its case-in-chief through the use of Defendant-Appellant‘s prior felony convictions for the offenses of drug possession, having weapons undеr a disability and improper handling of a firearm, all of which prejudiced and pre-disposed the trier of fact.”
{¶43} Whether a defendant shall be tried separately on different counts of an indictment is a matter within the trial court‘s discretion. State v. Strobel (1988), 51 Ohio App.3d 31, 32, 554 N.E.2d 916; Braxton v. Maxwell (1965), 1 Ohio St.2d 134, 135, 205 N.E.2d 397. However, in this case, Appellant‘s trial counsel did not move for severance.
{¶44} Because
{¶46} “When a defendant claims that he was prejudiced by the joinder of multiple offenses, a court must determine (1) whether evidence of the other crimes would be admissible even if the counts were severed, and (2) if not, whether the evidence of each crime is simple and distinct.” State v. Schaim (1992), 65 Ohio St.3d 51, 59, 600 N.E.2d 661.
{¶47} The state correctly argues that Appellant was not prejudiced by his counsel‘s failure to file a motion to sever the
{¶48} Two of Appellant‘s ineffective assistance of counsel claims and his second assignment of error are based upon several statements made by the state
Ineffective Claim No. 5
{¶49} “Defensе counsel failed to object to repetitive mis-statements of law by the prosecutor during voir dire of the jury, testimony of witnesses during trial and final argument, all of which communicated to the jury a shifting burden of proof from the State to the Defendant, and which effectively denied the defense of self-defense.”
Ineffective Claim No. 7
{¶50} “Defense counsel failed to object to improper jury instructions of the trial judge which improperly stated the law of self-defense and which shifted the burden of proof from the State of Ohio to Defendant-Appellant, all of which constituted structural error in the trial proceedings, thus depriving Defendant-Appellant of his due process right to a fair trial.”
SECOND ASSIGNMENT OF ERROR
{¶51} “THE TRIAL COURT COMMITTED PREJUDICIAL AND REVERSIBLE ERROR BY IMPROPERLY INSTRUCTING THE JURY ON THE LAW OF SELF-DEFENSE, WHICH THEREBY SHIFTED THE BURDEN OF PROOF FROM THE STATE OF OHIO TO DEFENDANT-APPELLANT, ALL OF WHICH CONSTITUTED STRUCTURAL ERROR IN THE TRIAL PROCEEDINGS, THUS DEPRIVING DEFENDANT-APPELLANT OF HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW.”
{¶53} The Supreme Court of Ohio elaborated on the nature of the defense of self-defense in State v. Martin (1986), 21 Ohio St.3d 91, 488 N.E.2d 166, explaining:
{¶54} “This court, in State v. Poole (1973), 33 Ohio St.2d 18, 19, [62 O.O.2d 340], characterized the defense of self-defense as a ‘justification for admitted conduct.’ Self-defense represents more than a ‘denial or contradiction of evidence which the proseсution has offered as proof of an essential element of the crime charged * * *.’ Id. Rather, we stated in Poole, this defense admits the facts claimed by the prosecution and then relies on independent facts or circumstances which the defendant claims exempt him from liability. Id. Thus, the burden of proving self-defense by a preponderance of the evidence does not require the defendant to prove his innocence by disproving an element of the offense with which he is charged. The elements of the crime and the existence of self-defense are separate issues. Self-defense seeks to relieve the defendant from culpability rather than to negate an element of the offense charged.” (Emphasis in original.) Id. at 94, 488 N.E.2d 166.
{¶56} The state, on numerous occasions throughout the trial, asserted without objection that the defense of self-defense constituted an admission of the essential elements of the crimes. Appellant contends that those statements relieved the state of its burden to prove the elements at trial. The prosecutor, on behalf of the state, made the following statements at trial:
{¶57} During voir dire:
{¶58} “[B]efore the Defendant can claim self-defense, he must admit -- admit that he committed the crimes he‘s charged with. Are you okay with that?” (Tr., p. 210.)
{¶59} “So the Defendant in this case would have to admit that he committed the murder before he can say self-defense. Okay?” (Tr., p. 211.)
{¶60} “If someone admits to doing something, is that pretty good evidence of -- that goes towards guilty beyond a reasonable doubt?” (Tr., p. 303.)
{¶61} During cross-examination of Appellant:
{¶63} During closing argument:
{¶64} “So before you can even consider self-defense, ladies and gentlemen, he is guilty. He is guilty of murder before you even start thinking about self defense.” (Tr., 1035.)
{¶65} “He admits to the murder. It is then his job to prove self-defense. That‘s the law. The Judge is going to give you the law. That‘s the law.” (Tr., p. 1036.)
{¶66} It appears from the record that none of these statements by the prosecutor were entirely accurate. While Appellant may admit to the actions that occurred when he claims self-defense, he does not admit to intent, an essential element of the crime of murder. These statements are clearly improper.
{¶67} The trial court, however, in its instructions, stated thаt “[a] Defendant is presumed innocent unless guilt is established beyond a reasonable doubt. A Defendant must be acquitted of the charge unless the State produces evidence which convinces you beyond a reasonable doubt of each and every element of the offense and specification charged in the indictment.” (Tr., p. 1044.)
{¶68} The trial court provided the standard jury instructions on murder, as well as the lesser included offenses of voluntary manslaughter and reckless homicide. At the conclusion of the description of the elements of each crime, the trial court stated,
{¶69} The trial court then provided the following instruction on self-defense:
{¶70} “A Defendant has asserted an affirmative defense known as self-defense. Self-defense is a justification for admitted conduct. The Defendant admits to the facts claimed by the prosecution, but offers independent evidence of self-defense. * * * If the. [sic] Defendant proved every element of self defense by a preponderance of the evidence, then he must be found not guilty. If the Defendant failed to prove every element of self defense by a preponderance of the evidence, then he must be found guilty.” (Tr., pp. 1059-1061.)
{¶71} Appellant challenges this jury instruction on self-defense as prejudicial error, and also relies on the failure to object to the jury instruction by Appellant‘s trial counsel as proof of ineffective assistance of counsel. However, there is no defect in the trial court‘s instruction on self-defense.
{¶72} A trial court must fully and completely give all jury instructions that are relevant and necessary for the jury to weigh the evidence and to discharge its duty as the factfinder. State v. Comen (1990), 50 Ohio St.3d 206, 553 N.E.2d 640, paragraph two of the syllabus. In examining the trial court‘s jury instructions we must review the court‘s charge as a whole, not in isolation, in determining whether the jury
{¶73} As stated previously, Appellant contends that the jury instructions shifted the burden of proof from the state to Appellant. A review of the charge reveals that the trial court instructed the jury on the essential elements of murder, as well as the lesser included offenses of voluntary manslaughter and reckless homicide. Following the description of the elements of each crime, the trial court instructed the jury that if the state did not prove each element beyond a reasonable doubt, the jury must acquit Appellant. After instructing the jury on the essential elements of each crime, the trial judge provided the self-defense instruction. Therefore, the jury would never even consider the affirmative defense unless they had already determined that Appellant was guilty of one of the charged crimes.
{¶74} The self-defense instruction correctly stated that Appellant had to prove by a preponderance of the evidence that he acted in self-defense. Contrary to Appellant‘s argument, the trial court did not instruct the jury that the burden of proof “shifted” to Appellant, but, rather, that a defendant asserting self-defense must prove it by a preponderance of the evidence. Because the jury would not need to examine the elements of this defense unless they had found every elеment of the underlying crime had already been proven, it is completely accurate to say that if the defense falls short, the accused must be found guilty.
{¶75} While the prosecutor was wrong in his comments, the state‘s wholly incorrect interpretation of the effect of the affirmative defense of self-defense was
{¶76} Finally, there is considerable evidence in the record from which the jury could have concluded that Appellant was guilty of murder. In other words, this is not a case where the evidence was slight, and, therefore, we сould find that the jury convicted Appellant because of confusion regarding the state‘s burden of proof on the elements. Accordingly, Appellant‘s fifth and seventh ineffective assistance of counsel claims and his second assignment of error are overruled.
Ineffective Claim No. 6
{¶77} “Defense counsel failed to advocate on behalf of Defendant-Appellant during final argument to the jury by abandoning his responsibility to his client through the use of disparaging and derogatory remarks which were against his client‘s penal interests and which served only to prejudice the jury against him.”
{¶78} In an effort to explain why Appellant fled the murder scene instead of admitting that he shot Bush in self-defense, Appellant‘s trial counsel conceded that Appellant was involved in criminal activity concerning guns and drugs in order to show that the police would not have believed his story and that he would have been arrested. Appellant‘s trial counsel argued that the police and law-abiding citizens want individuals like Appellant locked up, and Appellant knew that if he admitted he shot Bush that he would have gone to jail.
{¶80} “See, the government [* * *] is [* * *] relying on the possibility [* * *] that even you, ladies and gentlemen, would rather see [Appellant] off the streets, and it‘s not a bad idea. Why not? I mean, he -- he‘s involved with drugs, was convicted of it, оbviously didn‘t learn his lesson. Well, you know, why not convict him? [* * *] What if we let him out? We let him out and maybe next time -- maybe next time it is [Appellant] that dies.” (Appellant‘s Brf., p. 25.)
{¶81} In his excerpt, Appellant excludes the relevant portion of the argument. His trial counsel answered the foregoing questions, “[w]ell, once again, because you took an oath, and the oath is -- they‘re not just words.” (Tr., p. 1028.) The crux of counsel‘s argument on behalf of Appellant was that the police and the state were trying to convict Appellant because he was a drug dealer. In his closing argument, he conceded that Appellant was a drug dealer, and, perhaps a segment of society might think that he was better off in jail, but he underscored the fact that the jury must only convict Appellant if the state proved beyond a reasonable doubt that he committed the crimes alleged in the indictment.
{¶82} As stated earlier, compelling evidence was adduced at trial to establish that Appellant murdered Bush. As a consequence, Appellant‘s argument that the jury convicted him solely to get a drug dealer off the streets is without merit. Counsel‘s arguments, particularly after Appellant testified, himself, at trial, appear to be within the bounds of trial tactic. Appellant suffered no prejudice as a result of his counsel‘s
Ineffective Claim No. 8
{¶83} “Defense counsel‘s decision to waive the test for reasonableness as part of a self-defense instruction unduly prejudiced Defendant-Appellant‘s right to a fair trial and the effective assistance of counsel.”
{¶84} Appellant‘s trial counsel did not request an instruction that explained to the jury that a defendant need only have a reasonable belief that he was in imminent danger of death or great bodily injury and that his only reasonable means of escape was the use of deadly force. Hence, even though the defendant may have been mistaken about the threat to his life, he may still claim self-defense. Appellant contends that, “waiver of this instruction by his сounsel impacted him adversely by limiting the jury‘s ability to favorably consider testimonial evidence consistent with instructions of law that may have been exculpatory of Defendant-Appellant‘s conduct.” (Appellant‘s Brf., p. 26.)
{¶85} First, it is important to note that the instruction provided to the jury, that Appellant must show that he had a bona fide belief that he was in imminent danger of death or great bodily harm, includes a reasonableness element. In other words, the jury was not instructed that Appellant had to prove by the greater weight of the evidence that his life was in danger, but only that he had a bona fide belief that it was in danger.
{¶87} In summary, Appellant has failed to demonstrate that, but for his counsel‘s conduct, his trial would have resulted in an acquittal. He has also failed to show that the jury instructions on self-defense were incorrect. For these reasons, both of Appellant‘s assignments of error are overruled and his conviction is affirmed.
Donofrio, J., concurs.
Vukovich, P.J., concurs.